American Inv. Co. v. Cable Co.
| Decision Date | 30 March 1908 |
| Docket Number | 831. |
| Parties | AMERICAN INV. CO. v. CABLE CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A writ of error will not be dismissed by this court where there is enough in the bill of exceptions or transcript of the record presented, or both, to enable the court to ascertain substantially the real questions in the case which the parties seek to have decided therein.
[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 3126, 3127.]
The bond, which is prerequisite to the issuance of a writ of certiorari, may in behalf of a corporation petitioning for the writ, be executed by any authorized agent of the corporation. The term "manager," as applied to a private corporation, indicates one who has the general direction and control of its affairs, and when used by one in connection with the seal, imports authority to sign in behalf of the corporation. The word "manager" implies agency, control, and presumptively sufficient authority to bind a corporation in a case in which the corporation was an actual party to the case tried and brought up by writ of certiorari.
[Ed Note.-For other definitions, see Words and Phrases, vol. 5 p. 4319.]
A corporation may adopt a seal different from its corporate seal for a special occasion or for a special use, and the seal thus adopted is for all the intents and purposes for which it is used the corporate seal for that time and occasion.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 139.]
The seal of a corporation is prima facie evidence that it was affixed by proper authority, and, even though the corporate seal be not affixed, where a certiorari bond is signed in behalf of a corporation by one whose official designation imports agency, it will be presumed, in the absence of evidence to the contrary, that the substitution of the seal used for the special occasion was either specially authorized or within the scope of the general powers of the agent.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 12, Corporations, § 139.]
While, by statute, a claimant cannot, without the consent of the plaintiff in fi. fa., withdraw his claim more than once, still a claim may be withdrawn by the consent of the plaintiff in fi. fa., or it may be dismissed upon his motion, and, in either event, the claim may be renewed. Neither a withdrawal of the claim nor its dismissal for want of prosecution, however, is an adjudication of the issue upon its merits, or constitutes any bar to the interposition of another claim. The claimant is not allowed of his own motion to withdraw his claim more than once, because the plaintiff is entitled to prosecute the case to verdict. If, however, the plaintiff in fi. fa. moves a dismissal of the claim or consents to its withdrawal by the claimant, he waives this right, and takes the risk of the interposition of another claim.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, § 586.]
There was no error in sustaining the certiorari and in ordering a trial upon the merits of the case.
Error from Superior Court, Fulton County; W. D. Ellis, Judge.
The American Investment Company had a justice's court execution in its favor levied on a piano as the property of one Charlie Brown. The Cable Company filed a claim to the piano, which was dismissed by the justice of the peace, whereupon the Cable Company sued out a writ of certiorari. A motion to dismiss the writ of certiorari having been denied, and judgment rendered for the Cable Company sustaining the certiorari and reinstating the claim, the American Investment Company brings error. Affirmed.
Lowndes Calhoun, for plaintiff in error.
J. W. & J. D. Humphries, for defendant in error.
1. A motion is made by counsel for defendant in error to dismiss the bill of exceptions upon the insufficiency of the assignment of error. This motion we decline to grant. We are quite familiar with the authorities cited in the brief of counsel for the defendant in error, but these decisions are not in point. The main purpose of the creation of courts for the correction of errors is to have the questions which are presented in the litigation definitely decided. It is the settled policy of this state, as shown by several recent acts of the General Assembly, that the legal merits of every case shall be passed upon by the court of last resort, and not only that, but, furthermore, that the pathway to justice shall not be made difficult by technicalities. It is our duty to decide the real questions between the parties if there is enough in the record to enable us to "see the point." In the instant case the bill of exceptions recites that "the court rendered judgment overruling said motion to dismiss the certiorari, and sustained the certiorari, and directing that the justice of the peace reinstate the claim case, and try the same on its merits, to which judgment the American Investment Company, defendant in certiorari, excepted and now excepts, and assigns the same as error." If the rulings of the judge of the superior court, which are complained of, had been separate, it would perhaps have been better to have made two assignments. The motion to dismiss the certiorari was oral, and the judge might have passed upon that orally, but, inasmuch as both rulings were made subject-matter of a single judgment, and inasmuch as an investigation of record only clearly discloses the questions involved and presented for our adjudication, we cannot hold otherwise than that the assignment of error is sufficient. This court is governed by the same laws and rules of procedure as the Supreme Court, and it is declared that in Civ. Code 1895, § 5569, that "it shall be unlawful for the Supreme Court of Georgia to dismiss any case for any want of technical conformity to the statutes or rules regulating the practice in carrying cases to that court, where there is enough in the bill of exceptions or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case which the parties seek to have decided therein."
2. A writ of certiorari issued without the filing of a legal bond is a nullity. It should never have issued at all. But the bond, which is an indispensable prerequisite to the issuance of the writ of certiorari, may, in the behalf of a corporation, be executed by any agent of the corporation which is petitioning for the writ, who may be either specially or generally authorized to take such action in its behalf. In the present case the bond stated that the "Cable Company, claimant in the above-stated case, being dissatisfied with the judgment of the court dismissing said claim, and desiring to certiorari said case to the superior court, brings Henry T. Patterson and tenders him as its security, and the said Cable Company, as principal, and the said Patterson, as security, acknowledge themselves bound," etc. The bond is signed, "The Cable Company, Geo. W. Wilkins, Manager [Seal]"; and was approved by the justice of the peace. The affidavit was made by G. W. Wilkins, and the justice of the peace certified that "the Cable Company has paid all...
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